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Using Commissioner's Direction 2.16 - Affirmative measure for people with intellectual disability

The State of the Service Report shows a continuing decline in the proportion of APS employees who identify as having a disability. As noted in the report, this is partly the result of a number of policy and operational decisions, but the outcome is that the public service is less able to draw upon a diverse and representative workforce.

This document outlines a measure that can be used by agencies in recruitment exercises to increase the representation of people with disability in the APS.

Clause 2.16 of the Australian Public Service Commissioner’s Directions 1999 (the Directions) provides an affirmative measure that enables vacancies to be advertised as restricted to applicants who have an intellectual disability. The use of this provision is only available for people with an intellectual disability and cannot be used to target more broadly potential employees with disability.

APS agencies are generally expected to advertise vacancies in the Public Service Gazette as open to all eligible members of the community, consistent with the APS Employment Principles of merit and reasonable opportunity to apply. However, under clause 2.16 of the Directions, agency heads may, consistently with Commonwealth law, identify particular vacancies as open only to applicants with an intellectual disability.

It is important for agency heads to consider and record their justification for using the affirmative measures provision. Key factors justifying their legality include the inequitable employment outcomes experienced by this group of people and the fact that this situation is not improving. It is also good practice for agencies to be explicit about the legal basis for the decision to restrict selection to applicants with an intellectual disability. This could be done by noting in the advertisement and on selection documents that ‘the filling of this vacancy is intended to constitute an affirmative measure under Clause 2.16 of the Australian Public Service Commissioner’s Directions 1999.

While the affirmative measure does not apply to other types of disability, agencies can design their recruitment campaigns to encourage people with disability to apply. Agencies are also reminded that the National Disability Recruitment Coordinator and Disability Employment Services providers can assist agencies to improve their recruitment outcomes for people with disability.

See also the plain English guide to Clause 2.17. This Clause provides an affirmative measure allowing the employment of a person with disability where a disability employment services provider has assessed that person as being unable to compete successfully on merit due to his or her disability.